HABEAS CORPUS, in English Law, a celebrated writ, deriving its name, like other writs, from the formal words contained in it. This writ is used for various purposes; but the chief of these, being that which is always understood by Habeas Corpus without further explanation, is the release or bailing of a person who considers himself illegally imprisoned, or entitled to be discharged upon bail. Of the various other kinds made use of by the courts at Westminster, for removing prisoners from one court into another for the more easy administration of justice,—1st, The habeas corpus ad respondendum is issued when a man has a cause of action against one who is confined by the process of some inferior court, in order to remove the prisoner, and charge him with this new action in the court above; 2d, The habeas corpus ad satisfaciendum issues when a prisoner has had judgment against him in an action, and the plaintiff is desirous to bring him up to some superior court to charge him with the process of execution; 3d, The similar writs ad prosequendum, testificandum, deliberandum, &c., issue when it is necessary to remove a prisoner, in order to prosecute or bear testimony in any court, or to be tried in the proper jurisdiction in which the fact was committed; 4th, The common writ ad faciendum et recipiendum, issues out of any of the courts of Westminster Hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior court; commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer (whence the writ is frequently denominated a habeas corpus cum causa), to do and receive whatsoever the court shall consider in that behalf. But the great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum, directed to the person detaining another, and commanding him to produce the body of the prisoner, with a specification of the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf. This is a high prerogative writ, and, therefore, by the common law, issues out of the Court of Queen's Bench, not only in terms
time, but also during the vacation, by a fiat from the Chief-justice, or any other of the judges, and runs into all parts of the Queen's dominions except Scotland; for the sovereignty is at all times entitled to have an account why the liberty of any subject is restrained, wherever that restraint may be inflicted. If it issues in vacation, it is usually returnable before the judge himself who awarded it, and he proceeds by himself thereon; unless the term should intervene, and then it may be returned in court. Indeed, if the party were privileged in the Courts of Common Pleas and Exchequer, as being an officer or suitor of the court, a habeas corpus ad subjiciendum might also have been awarded from thence; and if the cause of imprisonment were palpably illegal, they might have discharged him. But if he were committed for any criminal matter, they could only have remanded him, or taken bail for his appearance in the Court of King's Bench, which occasioned the Common Pleas to discountenance such applications. But since the mention of the King's Bench and Common Pleas as co-ordinate in this jurisdiction, by statute 16th Car. I., cap. 10, it has been held that every subject of the kingdom is equally entitled to the benefit of the common-law writ in either of those courts at his option. It has also been said, and by very respectable authorities, that the like habeas corpus may issue out of the Court of Chancery in vacation; but upon the famous application to Lord Nottingham by Jenks, notwithstanding the most diligent searches, no precedent could be found where the chancellor had issued such a writ in vacation, and therefore his lordship refused it.
In the Court of Queen's Bench it was, and still is, necessary to apply for it by motion to the court, as in the case of all other prerogative writs, such as certiorari, prohibition, mandamus, and the like, which do not issue as of mere course, without showing some probable cause why the extraordinary power of the crown is called in to the party's assistance. For, as it was argued by Lord Chief-Justice Vaughan, "it is granted on motion, because it cannot be had of course, and there is therefore no necessity to grant it; for the court ought to be satisfied that the party has a probable cause to be delivered." And this seems the more reasonable, because, when once granted, the person to whom it is directed can return no satisfactory excuse for not bringing up the body of the prisoner. So that, if it issued of mere course, without showing to the court or judge some reasonable ground for awarding it, a traitor or felon under sentence of death, a soldier or mariner in the service of the crown, a wife, a child, a relation, or a domestic, confined for insanity or other prudential reasons, might obtain a temporary enlargement by suing out a habeas corpus, though sure to be remanded as soon as brought up to the court. And therefore Sir Edward Coke, when Chief-justice, did not scruple (in 13 Jac. I.) to deny a habeas corpus to one confined by the Court of Admiralty for piracy, there appearing, upon his own showing, sufficient grounds to confine him. On the other hand, if a probable ground be shown that the party is imprisoned without just cause, and therefore has a right to be delivered, the right of habeas corpus is then a writ of right which "may not be denied, but ought to be granted to every man that is committed, or detained in prison, or otherwise restrained, though it be by the command of the king, the privy council, or any other."